P L D 1999 Lahore 131 (PLP)

MIAN ALLAH NAWAZ, J.‑‑The sole question, ‑that falls for adjudication in this Criminal Original No.72‑M of 1997, is whether the circumstance of submission of unconditional apology by respondents/accused totally purges them from the consequence of their misdemeanour and entitles them to discharge as a matter of right.

2. The unfortunate events, which are not in dispute and which happened on 29‑8‑1997 are these: On that day, a procession, consisting of 100/150 led by two Members of Provincial Assembly Punjab, namely, Sami Ullah Chaudhri and Ch. Afzal Gil, went to the High Court premises at Bahawalpur Bench and shouted abusive slogans against the Judges of the High Court as well as the Court. Confronted with this situation, our brother Sh. Amjad Ali, J. immediately brought that matter to the notice of the Chief Justice. Pursuant to that, the Honourable Chief Justice directed that notices be issued to Sami Ullah Chaudhri and Ch. Afzal Gill, M.P.As. to show cause as to why they should not be committed for contempt of this Court. The Commissioner Bahawalpur Division was also directed to make a probe and report the names of other participants of procession. On 1‑9‑1997, a copy of daily 'Siadat' Bahawalpur was placed before the Honourable Chief Justice from where it was gathered that apart from aforesaid two legislators, three other persons namely, Muhammad Iqbal Mehr, Divisional President of Muslim League Youth Wing, Mr. Qayyum Mazhar Khan, President City Muslim League Youth Wing and Mr. Tahir Janbaz had also participated in the said procession, which had thereafter, gone to Jamia Masjid, Bahawalpur where Sami Ullah Chaudhri, Muhammad Iqbal Mehr and Qayyum Mazhar Khan delivered disparaging speeches against the learned Judges of this Court. Resultantly, Notices were issued to the aforesaid persons under section 3 of the Contempt of Court Act, 1976. Mr. Sami Ullah Chaudhri, Ch. Afzal Gill, Muhammad Iqbal Mehr, Qayyum Mazhar Khan and Tahir Janbaz entered appearance alongwith Mr. Shaukat Shehzad, Advocate. Meanwhile, Commissioner Bahawalpur Division made a report that 13 other persons, namely, Chacha Rasul, Rana Muhammad Sarwar, Qayyum Azam, Muhammad Akram Javed, Aapa Feroz, Syed Fargham alias Farri, Abdul Khaliq Qureshi, A.D. Raza, Gulzar Ahmad Ghauri, Muhammad Akram Bhatto, Javed Ahmad, Advocate and Tahir Bashir were also the participants of that procession of 29‑8‑1997. Accordingly, Notices were issued to the aforesaid persons too. All of these persons finally entered appearance and filed affidavits wherein they submitted unconditional apologies and put themselves at the mercy of this Court. It is to be noted that Aapa Feroz was not in attendance on that date of hearing due to her ailment. The hearing of the Criminal Original was postponed from one date to another on account of variety of reasons. Suffice it to note that instant suo motu matter came before this Bench on 22‑10‑1998 as a consequence of order of my lord the Chief Justice dated 30‑8‑1997. On that date of hearing, Mr. Sami Ullah Chaudhri and Muhammad Afzal Gill appeared alongwith Mr. Shehszad Shaukat, Advocate. As the remaining accused were not present due to absence of service, hearing was postponed to 29‑10‑1998. On this date of hearing all the respondents/contemners entered appearance. Learned counsel for accused/respondents relied upon Syed Masroor Ahsan and others v. Ardeshire Cowasjee and others PLD 1998 SC 823 to contend that all of respondents had submitted their unconditional apology on 29‑10‑1998; that their apology was wholly sincere and be accepted as such. On the strength of rule laid down in Masroor Ahsan's case it was canvassed that all the contemners be condoned and be discharged. Learned Advocate‑General adopted the same line of arguments. At the fag‑end, Mr. Mumtaz Hussain Bazmi, Advocate learned Member of the High Court Bar Association came forward and stated that he had authority to say that apology tendered by respondents be accepted; that all of them were highly repetentant and beseeched forgiveness with folded hands. We have heard the learned counsel for the parties at length, and examined the contents of affidavits submitted by respondents/contemners. Historically, the States and Courts of law are as ancient as orderly States. An organised State thrives on the civilized behaviour of its citizens and laws which are just and benevolent. In the scheme of organized State, Courts are the arbiters of disputes between citizens, inter se, and citizens and State. So, the fundamental obligation of Court is to keep scales of justice even. The powers of the Courts to punish their contemner emanates from the above sacred obligation. Majesty of Courts and Supremacy of Rule of law are synonymous orderly State regardless of their form. Hazrat Imam Ghazali in a famous work "AHYA ALOM" said "A State can exist on ""but not on injustice". So is the paramount necessity of wholly independent and effective judiciary. Two passages from two celebrated works in this context are pertinent; these are famous 'Badaye', Volume VII by Allama Abdu Bakar Ala‑uddin Alkasani and Law of Contempt by Oswald. The relevant passage from 'Badaye' is reproduced as under:‑‑ There occurs a passage in Law of Contempt by Oswald who has taken it from the book authored by Sir Thomas Elyot. The same is as under:‑‑ "The most renowned Prince King Henry the fifth, late King of England, during the life of his father was noted to be fierce and of wanton courage. It happened that one of his servants, whom he favoured very much, was arraigned before the King's Bench for felony committed by him and the prince learning of this in furious rage came hastily to the bar where his servant stood as a prisoner and commanded that he be set at liberty, where at all men were abashed, except the Chief Justice, who humbly exhorted the prince to be contended that his servant might be ordered according to the ancient laws of the realm or if he would have him saved from the rigours of the laws, that he should if he liked appeal to the King, his father, to grant him his gracious pardon. By this answer the prince was not appeased, but rather more inflamed, and made an attempt to take away his servant. The Judge considering the perilous example and inconvenience that might thereby ensue with a valiant spirit and courage commanded the prince upon his allegiance to leave the prisoner and depart‑his way. As the prince was still in fury, he m a terrible manner came up to the place of judgment and the men present in Court thought that he would. slay the Judge or cause him some injury. The Judge, however, sitting still, without moving, declaring the Majesty of the King's place of judgment, and with an assured and bold continuance, addressed the prince with these words:‑‑ 'Sir, remember yourself, I keep here the place of the King, your sovereign lord and father, to whom, you owe double obedience. In his name, I charge you desist from your wilfulness and unlawful enterprise and thereby give good example to those who hereafter shall be your subjects. And now for your contempt and disobedience I send you to the prison of the King's Beach where I commit you and direct that you shall remain there until the pleasure of your father, the King, be further known.' Upon these words the prince was abashed and laying his weapon apart and doing reverence, daparted and went to the King's Bench as he was commanded. His servant felt disdainful at this and came and told the King of what had happened, whereupon, in all gladness the King holding his hand upward said in a loud: 'O merciful God, how much am I above all other men bound to your infinite goodness, especially because you have given me a Judge who fears not to administer justice and also a son who can suffer and obey justice." The aboveSaid passage though pertaining to different jurisprudential cultures highlights the importance of Judiciary; the position of 'Qazi' and decorum of Courts. These were incorporated by our founding fathers in the Constitution of Islamic Republic of Pakistan, 1973. Article 204 embodies these rules. In the context of above, we now proceed to consider the effect of unconditional apologies of respondents/condemners. This was examined by the Apex Court as back as 1954 in a case reported as Israr Hussain v. The Crown PLD 1954 SC 313, and it was held as under:‑‑ "Any allegation which undermines the confidence of the public in a Court of Justice is a contempt of that Court. And public confidence in a Court is undermined as much by attributing dishonesty and corruption as partiality or incompetency to it. 'The arraignment of justice of the Judges, said Mr. Justice Wilmot, is arraigning the King's justice; it is an impeachment of his wisdom and goodness in the choice of his Judges and excites in the inds of the people a general dissatisfaction with all judicial determination and indisposes their minds to obey them; and whenever men's allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice'. It does not make the slightest difference whether the contempt of a Court is committed in that Court, or in a subordinate Court or in a superior Court or on the roadside, or in a club room in Pakistan or outside Pakistan, and it has never been doubted that a contempt of Court by a member of the legal profession is a 'reasonable cause' for taking disciplinary proceedings against him, the reason being that any such conduct on the part of an Advocate reveals a mental defect which. so long as it lasts, renders him unfit to remain a part of the system which he seems to damage by bringing it into contempt. I adhere to that opinion still and with greater conviction, and nothing has come to my notice since to make me entertain any doubt as to the correctness of that principle. " The rule enunciated in PLD 1954 SC 313 was reiterated in another case reported as Yusuf Ali Khan, Barrister at Law v. The State and Arif Nizami's case PLD 1971 SC

72. Speaking for the Bench, his lordship Mr. Justice Hamood‑ur‑Rehman, the then Chief Justice of Pakistan said:‑‑ "I have now to consider as to what is the effect of the unqualified apology tendered on behalf of the contemners. An apology does not provide the' contemner with an absolute excuse for the offending publication nor does it entitle him to a discharge as of right, for, it cannot remedy the evil caused or the harm done to the administration of justice by shaking the confidence of the public in the Court or a particular Judge of the Court. It is only a mitigating circumstance and no more, but even in this respect an apology in order to dilute the gravity of the offence must evidence a real contriteness and an earnest desire to make amends or as has been said in some cases must be a 'manful confession of conscious wrongdoing'. Let no one be under the impression that the press enjoys any special privilege of traducing the Judges nor should there be any impression that after one has grievously slandered and scandlized a Judge of a superior Court he can come to the Court and get away with it by merely tendering an apology. Such a tendency must be curbed in the public interest itself. If Judges are exposed to such slanderous attacks, their independence is bound to be shaken and it might well‑result in destroying the independence which the Judges have hitherto so creditably maintained. It is the duty of the Court, therefore, to protect its Judges and to see that the confidence of the public‑ in their administration of justice is not undermined. There can be no question, therefore, of treating the apology as a full amend for the grave harm that has been caused to the reputation, good name and honour of one of the Judges of this Court." The aforesaid rule was followed by a Full Bench of the Lahore High Court in a case reported as Habibul Wahab Elkheri v. Sh.Shaukat Ali, Advocate PLD 1976 Lah.

373. We have come across a precedent of the Apex Court of our neighbouring although hostile country India AIR 1970 SC 2015. In this case, Mr. E.M.S. Namboodripad appellant/former Chief Minister of Kerala State held a press conference in which he said that Marx and Engels considered the Judiciary as an instrument of oppression and even today when the State set‑up has not undergone any change, it continues to be so; that the Judges were/are swayed by class hatred, class interests and class prejudices. On these utterance, the High Court of Kerala initiated action against him under the law of contempt. Accordingly, the appellant appeared before the Court and stated that utterance attributed to him did not offend the majesty of law, undermine the dignity of Courts or obstruct the administration of justice; that his statement was in line with the philosophy of his political party; that if it was not so felt, he offered his unconditional regret. The Full Bench of Kerala High Court held that he was guilty of contempt and sentenced him to pay an amount of Rs.1,000 or one month's simple imprisonment in default of the payment of fine. Feeling aggrieved, the appellant filed an appeal which was dismissed by the Apex Court. The plea. raised by contemner was not accepted and his conviction was upheld. We are persuaded to quote paras. 29, 30 and 34 from the aforesaid judgment. Mr. Justice Hidayat Ullah speaking for the Bench examined the duties and functions of the Court and held:‑‑ "

29. The Courts in India are not sui generis. They owe their existence, form, powers and jurisdictions to the Constitution and the laws. The Constitution is the supreme law and the other laws are made by Parliament. It is they that give the Courts their obligatory duties, one such being the settlement of disputes in which the State (by which we mean those in authority) are ranged against citizens. Again they decide disputes in which class interests are apparent. The action of the Courts when exercised against the State proves irksome to the State and equally when it is between two classes, to the class which loses. It is not easily realized that one of the main functions of Courts under Constitution is to declare actions, repugnant to the Constitution or the laws (as the case may be), to be invalid. The Courts as well as all the other organs and institutions are equally bound by the Constitution and the laws. Although the Courts in such cases imply the widest powers in the other jurisdictions and also give credit where it belongs they cannot always decide either in favour of the State or any particular class. There are innumerable cases in which the decisions have gone against what may be described in the language of communism as the exploiting classes." Continuing the learned Judge dwelt upon the infirmities in law and suggested the manner in which they were to be cured. It was observed: (30) For those who think that laws are defective, the path of reform is open, but in a democracy such as ours weaken the Judiciary itself. Where the law is silent, the Courts have discretion. The existence of law containing its own guiding principles, reduces the discretion of the Courts to minimum. The Courts must do their duty according to their own understanding of laws and the obligations of the Constitution. They cannot take their cue from the sentiments of politicians nor even indirectly given support to something which they consider to be wrong or against the Constitution and the laws. The good faith of the Judges is the firm bed‑rock on which any system of administration securely rests and an attempt to shake the peoples' confidence in the Courts is to strike at the very root of our system of democracy. The oft‑quoted anger of the executive in the United States at the time of New Deal and the threat to the Supreme Court (which the United States had the good sense not to pursue) should really point the other way and it should be noted that today the security of the United States rests upon its dependence on Constitution for nearly 200 years and that is mainly due to the Supreme Court." Rejecting the plea of unconditional apology, it was held as under:‑‑ "(34) As regards sentence we think that it was hardly necessary to impose a heavy sentence. The ends of justice in this case are amply served by exposing the appellant's error about the true teachings of Marx and Engels (behind whom he shelters) and by sentencing him to a nominal fine. We accordingly reduce the sentence of fine to Rs.50. In default of payment of tine, he will undergo simple imprisonment for one week. With this modification, the appeal will be dismissed." Applying these touchstones, to the facts and circumstances of the case in hand, it is quite clear that Sami Ullah Chaudhri and Ch. Afzal Gill on 29‑9‑1997 led the procession. comprising 100/150 persons to the gate of the Lahore High Court, Bahawalpur Bench where they shouted vociferous slogans against the Judges of the High Court; the Judges were termed as 'Jialas' and their decisions were proclaimed as perverse. Thereafter, they went to Jamia Masjid and made disparaging speeches. This was not the end of it, Sami Ullah Chaudhri addressed a Press Conference wherein he cast serious allegations against Mr. Justice Sh. Amjad Ali and Mr. Justice Sharif Hussain Bokhari. No doubt, the respondents/contemners have admitted their guilt and have tendered their unconditional apologies on 23‑9‑1998. Nevertheless, it is crystal clear that this Court was maligned, and the contempt committed by 0 respondents was/is well‑planned and of grossest wilful misdemeanour. Respondents even did use the God Almighty for their nefarious purpose. Not even that, one of the respondents addressed a Press Conference. On the above strength, we have no difficulty in concluding that respondents had committed the vilest contempt. They had tried to mobilize the public opinion against the Judges of the High Court. They have even tried to use the house of God Almighty. Their unconditional apologies are not adequate to meet the damage which they had done. Road to mobocracy leads to violence and then after substitution of private vengeance in place of en organized administration of justice. This ultimately results into the anarchy. On these facts, we are not inclined to accept their unconditional apologies. Plea of respondents, however, can be legitimately considered in the matter of inflicting punishment upon them. The appellants tendered their unconditional apologies on 23‑9‑1998, end have reiterated the same through Mr. Mumtaz Hussain Bazmi, Advocate. Taking the aforesaid circumstances into consideration, we are inclined to impose the lesser sentence. Each of the respondents is accordingly convicted under section 4 of the Contempt of Court Act, 1976 and is sentenced to suffer imprisonment till the rising of the Court and to pay fine of Rs.2,000 each, or to undergo 7 days' imprisonment in default of payment of fine. Each convict is allowed seven days' time to pay the said amount of fine, and if the said fine is not paid within the said period, then each defaulting shall be taken into custody to suffer the imprisonment directed to be undergone in default of payment of the said fine. These are our reasons for the short order already announced in open Court on 29‑10‑1998. M. B. A./S-282/L???????????????????????????????????????????????????????????????????????????????????? Order accordingly.